In Re Athena D.
162 N.H. 232
| N.H. | 2011Background
- Athena D. was born in October 2003 and removed due to safety concerns; she was placed with her maternal grandparents at three months old.
- Parents’ parental rights were terminated January 26, 2006; DCYF has had legal custody since then.
- DCYF initially planned for grandparents to adopt, but the grandparents declined adoption, leading DCYF to include them in the adoptive-family selection.
- Athena was placed with the H. family, chosen by the grandparents, but Athena’s behavior deteriorated and the H. family relinquished care.
- Grandparents offered respite care rather than return to them for adoption; DCYF declined due to concern for stability and harm to Athena.
- DCYF moved to place Athena with the L. family; grandparents objected and sought to adopt; after hearings, the probate court denied the grandparents’ petition and favored the L. family.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper forum for grandparent visitation petition | Grandparents argue RSA 461-A:13 governs filing in probate court. | Probate court lacks subject-matter jurisdiction; petition belongs in family division. | Petition must be filed in the court having jurisdiction to hear divorce cases. |
| Jurisdiction of probate court post-adoption | Probate court should hear visitation before finalizing adoption. | Post-adoption visitation petitions are not within probate court's scope; family division handles them. | Probate court lacks authority to decide grandparent visitation; adoption could proceed. |
| Effect of termination of parental rights on the visitation statute | RSA 461-A:13 I, III should apply similarly to cases with termination as with death of a parent. | Termination is not expressly addressed; still supports proceeding in the appropriate court under the statute. | Visitation petitions in termination cases are treated like other specified scenarios; must be filed in proper court. |
| Stay of adoption pending visitation petition | Stay is necessary to preserve grandparent rights. | Stay is discretionary; best interest favors finalizing adoption to stabilize Athena. | Probate court did not abuse discretion in denying the stay. |
| Review of post-hearing documents indicating bad faith | Documents suggest bad faith by adoptive parents affecting visitation. | Probate court lacked jurisdiction over grandparent visitation; review of those documents is premature. | No merit; probate court lacked jurisdiction to resolve visitation claims. |
Key Cases Cited
- In re CIGNA Healthcare, 146 N.H. 683 (2001) (probate court jurisdiction limited to statutorily prescribed matters)
- In re Baby K., 143 N.H. 201 (1998) (discretion in staying judicial proceedings)
- In re Dufton & Shepard, 158 N.H. 784 (2009) (grandparent visitation in context of absent nuclear family)
- Vogel v. Vogel, 137 N.H. 321 (1993) (general requiring substantial factual and legal review)